Allowed

Smt. Fatima Nooraiyn Tuba v. The State of Telangana

Telangana HC9 Nov 2020CRLP/232/2020

Case brief

AI extract

What is this about?

This court considered a petition to cancel anticipatory bail granted to an accused alleging fraud and absconding. Finding no evidence of misrepresentation or bail violation, the court upheld the lower court's dismissal of the cancellation petition and dismissed the current criminal petition, allowing leave to file it.

What did the court decide?

Leave to file the Crl.P. No.232 of 2020 is granted, but the Criminal Petition is dismissed. Miscellaneous petitions pending are to be disposed of.

Smt. Fatima Nooraiyn Tuba Vs The State of Telangana — Bail and Remand | Telangana HC (2020)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA

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AT HYDERABAD

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MONDAY, THE NINTH DAY OF NOVEIVBER TWO THOUSAND AND TWENTY

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PRESENT

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THE HONOURABLE SRI JUSTICE K.LAKSHMAN

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I.A.NO: 1 OF 2020 IN/ AND CRIMINAL PETITION NO: 232 OF 2020

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Common C.T.

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Between:

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Smt. Fatima Nooraiyn Tuba, W/o. Sri Shoaib lshaq Rahimuddin,

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...PETITIONERS IN CRL.P. AND I.A.NO.1 OF 2O2O I DEFACTO COMPLAINANT

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AND

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The State of Telangana, Through the Public Prosecutor

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Sri Shoaib lshaq Rahimuddin, S/o. Mohammed lshaq Ahmed,

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...RESPONDENTS IN BOTH/ ACCUSED

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Petition under Section 439(2) of Cr.P.C praying that in the circumstances stated in the lt/lemorandum of Grounds of Criminal Petition, the High Court may be pleased to cancel the bail order dated 0511212018 in Crl.ft/iP No.3626/2018 in Cr.No.330/2018 order daled 1811012019 passed in Crl.M.P.No.1944 of 2019 in Cr.No.330 of 2018 on the file of the W.P.S. C.C.S. DD. Hyderabad, and allow the petitipn by cancelling the bail granted to the 2nd Respondent

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l.A. NO: 1 OF 2020

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Petition under Section 482 ol Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to grant leave to the petitioner permitting her to file the Crl.P. No.232 of 2020 before this Hon'ble Court questioning the order dt: 1811012019 passed in Crl.MP No.1944/20'19 in Cr.No.330/20'18 on the file of the Hon'ble V Additional l/etropolitan Sessions Judge, tvlahila Court, Hyderabad.

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This Petition coming on for hearing, upon perusing the lt/emorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri S.ASHOK ANAND KUIVAR, Advocate for the Petitioner and of the Public Prosecutor (TG) on behalf of the Respondent No.l and of Sri Khaja Manzoor Ali, Advocate for the Respondent No.2.

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The Court made the following: ORDER

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THE HON'BLE SRI JUSTICE K.LAKSHMAN

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LA.No. I of 2O2O

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IN/AND CRIMINAL PETITION No,232 of 2O2O

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COMMON ORDER:

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This Criminal Petition is filed under Section a39(2) of Cr.P.C. to cancei the anticipatory bail granted to the second respondent/A-1 vide order dated 05.12.2018 in Cri.M.P.No.3626 of 2018 in Crime No.330 of 2O18 by the V Additional Metropolitan Sessions Judge (Mahila Cor-rrt), Hyderabad (for short, V AMSJ, Hyderabad).

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The second respondent herein is A- 1 in Crime No.330 of 2018 on the file of WPS, CCS, DD, Hyderabad. The offences alleged against him are under Sections 498-A, 406, 42O and 313 of IPC and Sections 4 and 6 of the Dowry Prohibition Act, 196 1.

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Heard Sri S.Ashok Anand Kumar, learned counsel for the petitioner - de facto complainant, Iearned Fublic Prosecutor appearing on behalf of respondent No.1 - State, and Sri Khaja Manzoor Ali, learned counsel for the respondent No.2 - accused No. 1 . Perused the material on record

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The follo',r,ing are the undisputed facts:

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(i) The marriage betu'een the petitioner and the second respondent was performed on 2l .O7 .2015. The petitioner herein has lodged a complaint dated 25.06.2018 with WPS, DD, Hyderabad, who in turn,

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reglstered a case in Crime No.230 of 20 1g for the offences under Sections 49g_A, 406, 420 and 313 of IPC and Sections 4 and 6 of the Dowry prohibition Act against respondent No.2 _ accused No.1 and others.

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(ii) The second respondent/A- t has filed an application vide Crl.M.p.No.3626 of 201g under Section 43g of Cr.P.C. before the V AMSJ, Hyderabad seeking anticipatory bail.

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(iii) The V AMSJ, Hyderabad vide order dated 05. t2.2O1B granted anticipatory bail to the second respondent/A_ 1 on the condition of executing a personal bond for Rs.10,000/- with tr,vo sureties for the like sum each to the satisfaction ol the concerned SHO (out of two sureties, one must be from his relative).

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(iv) Thereafter, the police have completed investigation and filed charge sheet in Crime No.330 of 2O1B and the same was taken on file by the II Additional Metropolitan Session Judge, Hyderabad vide S.C.No.37i of 2019. The accused in the said case have filed a petition under Section 482 Cr.P.C. vide Cr1.P.No.1373 of 2O2O to quash the proceedings in S.C.No.37 I of 2OI9.

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(v) This Court vide order daled 26.02.2020 disposed of the said criminal petition, dispensing with the personal appearance of A- I and A-3 while permitting them to mark their appearance through their counsel, except on the dates when their presence is specifically required by the trial Court. However, the dispensation of personal appearance of the A-2 before the trial Court is rejected. The said S.C.No.371 of 2019^is pending and it is posted for trial.

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(ri) The Investigating^{Officerhas liled an application under} Section^{43g(2\ Cr'P C' vide Crl'M'P'No'1944of 2019 tn} Crime No.330^{of 2018 before the V AMSJ' Hyderabad} seeking to^{cancel the anticipatorybail granted to A-1'} However, the^{V AMSJ, Hyderabad, vide order dated} 18.10.2019^{has dismissedthe said application'}

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(vii) Feeling^{aggrievedby the said order' the petitioner/de} facto^{compla.inant has filed thepresent criminal}

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petition along with^{LA.No' lol 2O2O seeking leave to} her to challenge^{the said order'}

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The petitioner herein^{is tlne de} facto^{complainant in Crime} No.330 of 2018.^{She has filed I.A. No.1 of 2020 seeking leave} to file the present^{petition. On her complaint on1y, the police} have registered the above^{said crime. The second respondent} herein is her husband. According to the^{petitioner,the second} respondent/A- t has obtained anticipatory bail^{by playing fraud} on the Court. Having satisfied with the reasons mentionedⁱⁿ the affidavit filed in support of I.A.No.l of 2O2O and also considering the fact that on the complaint filed by the petitioner herein, the wife of the second respondent, the police have registered the above said case, I.A.No.1 of 2O2O is allowed granting leave to the petitioner to lile Crl.P.No.232 of 2O2O questioning the order dated 18.10.2019 passed in Crl.M.P.No. 1944 of 2019.

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The Investigating Officer has filed Crl.M.P.No.1944 of 2019 seeking to cancel the anticipatory bail granted in favour of the second respondent on the ground that the second

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respondent in his anticipatory bail application contended that he is working in Hyderabad though, in fact, he is working in abroad and thus, he has misrepresented the Court by giving false information regarding his address and place of employment, and obtained the bail. Taking advantage of the anticipatory bail, he flew awzry to Saudi Arabia after his release on anticipatory baii. It is also contended by the petitioner that a lookout notice was issued against the second respondent and he has filed W.P.No.46284 of 2018 challenging the said lookout notice. The said Writ Petition was disposed of by this Court directing the second respondent to approach appropriate forum of law. But, he has left India and r.r'ent to Saudi Arabia, though lookout notice is pending. With the said contentions, the petitioner herein sought to cancel the anticipatory bail granted in favour of the second respondent/A-1 vide order dated 05.12.2018 in Cr1.M.P.No.3626 of 2018. The petitioner herein has filed copy of the order in Cr1.M.P.No.3626 of 20i8 and counter filed thereon.

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In the order dated 05.12.2018, the V AMSJ, Hyderabad recorded the contentions of the second respondent herein and mentioned that the second respondent is a private employee and permanent resident of Hyderabad. Considering the said fact and also the fact that the entire investigation has been completed and charge sheet has been fi1ed, V AMSJ, Hvderabad, has granted anticipatory bail to the second

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respondent vide order dated 05.12.2018 with a direction to him to surrender before the concerned Court within 15 days from the date of order, and on such surrender, he shall be released on bail on executing a personal bond for Rs.10,000/- with two sureties for a like sum each to the satisfaction of the concerned SHO (out of two sureties, one must be from his relative). ln the said order, it is also mentioned that as per the record, the second respondent/A- 1 is working privately in Hyderabad and hence, the question of his fleeing away from justice and tampering with the prosecution evidence does not arise.

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B. In the complaint dated 25.06.2O 18, the petitioner herein has mentioned that her husband is in Saudi Arabia and her husband may come back again with more gundas and attack '. her father and brother any time. Her husband is holding Indian Passport and also having valid visa for Saudi Arabia. There is every possibility of her husband escaping from legal consequences as he is trying to leave the country as ear11, as possible and il he succeeds in his illegal attempts, there is every possibility of causing injustice to her and her family members. She has also stated that she does not want any counseling. With the said contentions, the first respondent has filed counter in Crl.MP.No.3626 of 2078. The V AMSJ, Hyderabad, a-fter considering the entire contentions and on perusal of the record, granted anticipatory bail to the second respondent on the ground that the entire investigation IS

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completed and charge sheet was also filed. Thus, the petitioner herein lailed to establish that the second respondent has misrepresented the V AMSJ, Hyderabad by stating that he is in India and he is doing a private job.

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As discussed above, it is recorded in the order 05.12.2018 by the V AMSJ, Hyderabad that the second respondent/A- 1 is a private employee and permanent resident of Hyderabad. Considering the said aspects only, the V AMSJ, Hyderabad has granted anticipatory bail to the second respondent. Even now, in the present Criminal Petition, the petitioner failed to produce any record/document to shorv that the second respondent has claimed that he is in India and a private employee. At the cost of repetition, it is apt to note that the petitioner did not file copy of the anticipatory bail application filed by the second respondent in Crl.M.P.No.3626 of 20i8. Thus, the contention of the petitioner that the second respondent has obtained anticipatory bail by misrepresentation and by playing fraud on the Court cannot be appreciated. She has not filed any complaint against the second respondent for the said aileged misrepresentation and fraud including initiation of proceedings under Section 340 of Cr.P.C.

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The other contention of the petitioner is that basing on the anticipatory bail granted to the second respondent, he left India to Saudi Arabia during the pendency of lookout notice issued against him. As stated above, the second respondent

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has filed W.P.No.46284 of 2O7B to rn,ithdravt, the lookout notice issued against him and this Court vide order dated 20.12.2018, disposed of the same directing the second respondent to approach appropriate forum.

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The petitioner has filed letter dated 21.O5.2019 issued by Foreigners Regional Registration Office, Hyderabad, u,hich reveals the travel particulars of the second respondent. In the said letter, it is specifically mentioned that the details provided therein are for the purpose of official investigations and should not be shared with any individual/any private agency or complainant. Even then, the petitioner has filed the said letter dated 21.05.2019. The petitioner has also filed notice issued to the second respondent by the Police under Section 41-A of '.. Cr.P.C. and would contend that since the second respondent has left the country, the Police are unable to serve the said notice on the second respondent. She has also filed notice dated 12.07.2018 issued by Bureau of lmmigration (Ministry of Home Affairs), Government of India, wherein it is mentioned that all the LOCs, r,,,hich have completed one year, u,ould automatically lapse after a year of opening, unless reviewed and recommended for retention by the originator. She has also filed fax messages dated 14.12.2019 and 21 .12.2O19 issued by AFRRO, RGIA, Hyderabad, which shor.r, that LOC ',vas issued against the second respondent and it is mentioned that on 2L|.2O19, the second respondent has approached the

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Department of lmmigration to depart to Dammam from RGIA, Hyderabad. During scrutiny of travel documents, his name is figured in the crime. Since he has involved in Crime No.330 of 20 18, the same \uas informed to the originator on phone. As per the instructrons from the orlginator, the said passenger was cleared through departure. Therefore, the authorities have cleared the departure of the second respondent basing on the information furnished by the Police concerned/ Originator of LOC. If at all the petitioner is having any grievance with regard to any procedural irregularity committed either by the Originator or the custodian of LOC, she has to initiate appropriate legal proceedings against them, but she cannot file application under Section a39Q) of Cr.P.C., seeking to cancel the anticipatory bail granted to the second respondent. Perusal of the materia.l would also show that there are otl-Ier proceedings i.e., M.C.No.313 l20lB and FCOP No.1135/2018 pending against the second respondent at the instance of the petitioner.

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Learned counsel lor the petitioner, by referring to the said proceedings and also to the proceedings in S.C.No.371 ol 2019, would submit that the second respondent is in Saudi Arabia and he is not cooperating with the Court below in concluding the trial. But, the said proceedings would reveal that the Court belou, did not issue any non-bai1able warrant against the second respondent. It is also trite to note that the^second

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respondent and others have filed Crl.P.No.1373 of 2020 under Section 482 of Cr.P.C., to quash the proceedings in S.C.No.37¹ ol 2019 and this Court vide order dated 26.O2.2O2O disposed ol the same dispensing with the personal appearance of A- I and A-3 while permitting them to mark their appearance through their cor-rnsel, except on the dates u.hen their presence is specifically required by the trial Court. However, the dispensation of personal appearance of the A-2 before the trial Court was rejected. Thus, the appearance of the second re spondent was dispensed with and he was permitted to appear through his counsel. Learned counsel would further submit that there is no complaint b1' the Police that the second respondent is not cooperating with the trial or he has violated the conditions imposed by the V AMSJ, Hyderabad, rvhile granting anticipatory bail. There is no complaint against the second respondent that he is threatening the witnesses.

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Learned counsel for the second respondent lvould submit that the second respondent has complied r.r,ith the directions issued by this Court, appear before the V AMSJ, Hyderabad, as and when his presence is required and also would cooperate in concluding the tria1. He would further submit that the second respondent has been complying with the order dated 26.O2.2O2O passed by this Court in Crl.P.No.1373 of 2020. As stated above, there is no complaint against the second

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respondent with regard to violation of any of the conditions imposed while granting bail or directions issued by this Court.

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The V AMSJ, Hyderabad, in the impugned order dated 18.10.2019, relied upon the principle held by the Apex Court in Dolat Ram Vs. State of Haryanar and also patna High Court in Usha Devi Vs. State of Bihar2, wherein it is held that bail once granted should not be cancelled in a mechanical manner. It is also apt to note that the Apex Court in Ms.X Vs, The State of Telanganas, after referring to the principle held by it in Neeru^yadav Vs. State of U.p.+, Kanwar Singh Vs. State of Rajasthans, Subramani Gopalakrishnan6 and Dolatram,s case (supra) and also on the facts of the said case, held that the Court must bear in mind the settled principle of law that bail once granted should not be cancelled, unless a coger-rt case, based on a supervening event has been made out. It is also relevant to note that in a recent judgment in Central

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Bureau of Investigation Vs. V.Vijay Sai ReddyT, the Apex Court held as follou,s:

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"while granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity ol the punishment which conviction will entail, the character ol the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial,

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l r99s⁽ l) scc 349 ! 2006 c .L.J 4435 Crin)inal Appeal No.7 I 6/201 8, dated 17.05 2018 AIR 2015 SC 3703

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5 2012 (12) scc 180 (20 rr).s scc 296 (2013) 7 SCC 4s2

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reasonable apprehension of the tampered with, the rarger .^.:", int,rrr er - -witnesses^being ests of the public/State and other ",,,^ . it' .ni.,^{"simi'lar considerationl} It has also to be kept that ror *'';;;: r.g"rut.l 0.,,.,,,,f i-11" :":o 't';;;;;^..:;fi::l.:k ;;: g lnstead of the evidence dealing means rhe court ,r.,. g.""r"r uJ;,:;:*n,"n *n.,n..Tn there is u *t.''"lt';; "'"^{satisfy itself} as to and that o.o"t"'"t'o,-, *', o1"t^{'t'"stthe accused} facie evir ' to produce prima "r"",.0,1'-'l'^{'" ";;;;;'o";'nu''"} charge' It is not t'ut' to n' tnt" the suiit "::.tl't .stabrishing ,f the accused o.r""o -r"rrLr rcasonable rl]1:: doubt." r5. As discusso.l ^,;"'j"T''"::,:::"oner^{herein faired'[o} ffi.:":" n"t obtained bail on u'o bY playrng not initiared ur.,r'n "u'lt alreged *r.,'"t"o" against -" "":j::::r#r]:::: .said and frar rncluding o.o"""-"ot""entation -:d^played on the court lings under section not even file any t. eith er *"n "ll^;;r, ;::: -, which gran te. "",;"::]:: rcrpatory bail or -' "' w rrnith po lice concerned. 16. with regard to nr,"-.. other contention of tl second .""oo.ro"rr,o 1e petitioner that the has left for Saudi pendency of rookou otuo'u during the notice' it is for tnt appropriate -' petitioner to take ",.o"^ujt the concerned violation of p.o".dr.3ainst cials for alleged authorities have arow including tlt "titgut: that the FRR. respondent the pendency o, ,o"."0 ^"'^to India during As stated supra' tht rnessages referred to supra' mentioned : "o^o^{in its fax} crarifispii6n from the on seeking originator, they n,tn" tve cleared the

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passenger i.e., the second respondent herein. The above stated facts would reveal that the petitioner has failed to establish any cogent case based on supervening event to cancel the anticipatory bail granted in favour of the second respondent. As per the principle laid dor.r,n by the Apex Court, this Court must bear 1n mind that bail once granted should not be cancelled mechanically.

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It is opt to note that the V AMSJ, Hl,derabad has granted anticipatory bail to the second respondent on the ground that the Police have completed investigation and filed charge sheet. There is no complaint that the second responcient has violated the conditions of bail. Thus, the petitioner has failed to establish any ground or circumstance that warrants this Court to cancel the anticipatory bail granted in favour of the second respondent.

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In view of the above discussion, the V AMSJ, Hyderabad, has rightly dismissed Crl.M.p.No. l94e of 2019 in Crime No.330 of 2018 vide order dated 18.10.2019. Thus, the petitioner failed to establish any ground or circumstance u'arranting interference by this Court in the impugned order. This Criminal Petition lacks merits and, is liable to be dismissed.

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